Gorsuch’s Collision Course With the Administrative State

By Philip Hamburger

March 20, 2017

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Neil Gorsuch on Capitol Hill in February.CreditGabriella Demczuk for The New York Times

A major point of contention facing Judge Neil M. Gorsuch in his Senate confirmation hearings this week is likely to be his view on a landmark 1984 Supreme Court decision concerning rule-making by federal agencies. This may seem like a dispute about administrative power, but more basically, it is about civil liberties.

The case, Chevron U.S.A. v. Natural Resources Defense Council, involved the Environmental Protection Agency’s authority to issue a rule under the Clean Air Act. Congress can expressly authorize agencies to make rules on one topic or another under current Supreme Court doctrine. Yet even when Congress does not expressly authorize rule making, agencies often make rules to clarify ambiguities or silences in laws in order to enforce them. They do this by interpreting the language used by Congress.

In such circumstances, according to Chevron, judges must defer to an agency’s interpretation, at least if it is within the range of permissible interpretations. In that way, agencies can make binding rules — essentially, can make law — on the theory that they are merely interpreting statutes, and under Chevron, judges generally cannot second-guess agency interpretations. In the case itself, the court found the E.P.A.’s interpretation of the law reasonable and upheld the rule.

The constitutional questions about Chevron focused for decades on the problem of separation of powers. But the debate has turned to deeper concerns about judicial independence and bias.

Judges have a duty to exercise their own independent judgment. Some academics and judges, including Justice Clarence Thomas and Judge Gorsuch, have therefore worried that Chevron requires judges to give up their independence in interpreting the law. As Judge Gorsuch explained while on the United States Court of Appeals for the 10th Circuit, courts have a “duty to exercise their independent judgment.”

Long ago, in Marbury v. Madison, Chief Justice John Marshall declared: “It is emphatically the province and duty of the judicial department to say what the law is. Those who apply the rule to particular cases, must of necessity expound and interpret that rule.” Judges cannot give up making their own judgments about statutes, as required by Chevron, without sacrificing their very duty as judges.

Even worse, Chevron establishes judicial bias. Judge Gorsuch has been silent on this problem. But where the government is a party to a case, Chevron requires judges to defer to the agency’s interpretation. This amounts to a precommitment to the government’s legal position. Chevron, in other words, forces judges to engage in systematic bias favoring one party — the most powerful of parties — in violation of the Fifth Amendment’s due process of law. Chevron deference is thus Chevron bias.

Of course, judges regularly defer to precedent, but that is deference to the judgment of another judge. It is quite another thing, and clearly unconstitutional, for them to defer to the judgment of one of the parties — indeed, to favor its legal position whenever it comes into court.

Chevron therefore cannot be reduced merely to the separation-of-powers concern — important as that is. Chevron bias also raises serious civil liberties issues, because each party has a constitutional right to an impartial judicial proceeding.

Although the Supreme Court has carefully avoided any resolution of the civil liberties questions, it has already been quietly backing away from Chevron. The only difference with Judge Gorsuch on the court is that, in light of the views he has expressed on the 10th Circuit, he would probably reject Chevron openly.

As might be expected, there are countervailing legal arguments in favor of Chevron. One is that, without Chevron, judges will have to attribute meaning to highly ambiguous statutes and will therefore have to make law — indeed, will have to make law on technical matters in which they lack competence. This is a reasonable concern, but entirely misplaced.

Judges should not make heroic efforts to find statutory meaning. Where a statute is ambiguous or silent on an issue, judges can use familiar interpretive techniques to discern its meaning. If they still cannot find its meaning, they should just stop. This is not to say they must hold such a statute unconstitutionally vague, but rather that they should avoid making law and therefore should recognize that the statute has nothing more to say. Once judges conclude as much, Congress can easily correct the ambiguity.

Attempts to rally around Chevron respond to fears for recent agency policies that rely on Chevron, such as the Clean Power Plan. Many agencies have used (and sometimes abused) Chevron to make expansive rules without express or even tacit statutory authorization, and such rules will be at risk. But these rules will be at risk long before Chevron hits the dust, because any new president can use Chevron to alter rules imposed by predecessors. The fate of such rules does not depend on the fate of Chevron.

Might a renunciation of Chevron hobble the administrative state? The administrative state thrived long before 1984, and for better or worse, it will not disappear with Chevron. The only structural change will be that agencies will not be able to act without express and clear congressional authorization for their rules. And if they cannot get such authorization, perhaps they ought not be making rules.

Chevron is a widely cited precedent, and precedents should never be casually overturned. But Chevron deprives Americans of their right to have judges who exercise their own independent judgment without systematic bias. Chevron is thus grossly unconstitutional — not least, a persistent denial of the due process of law.

Judges have a duty to reject Chevron with candor and clarity. Judge Gorsuch has done this. Rather than be berated for it, he should be congratulated.

Correction:

An Op-Ed article on Monday about a 1984 court case involving rule-making by federal agencies misspelled, in some editions, the given name of President Trump’s Supreme Court nominee. He is Neil Gorsuch, not Neal.